Kelly v. South Carolina, 534 U.S. 246, 15 (2002)

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260

KELLY v. SOUTH CAROLINA

Rehnquist, C. J., dissenting

16-3-20(C) (2001). At the sentencing phase of petitioner's trial, the State argued, and the jury found, the statutory aggravators that the murder was committed while in the commission of: kidnaping; burglary; robbery while armed with a deadly weapon; larceny with use of a deadly weapon; and physical torture. Once a South Carolina jury has found the necessary aggravators, it may consider future dangerousness in determining what sentence to impose.

In the present case, the prosecutor did not argue future dangerousness—as he did in Simmons—in any meaningful sense of that term. But the Court says that he need not, in order for the defendant to invoke Simmons; it is enough if evidence introduced to prove other elements of the case has a tendency to prove future dangerousness as well. Gone is the due process basis for the rule—that where the State argues that the defendant will be dangerous in the future, the defendant is entitled to inform the jury by way of rebuttal that he will be in prison for life. Thus, the Simmons rule is invoked, not in reference to any contention made by the State, but only by the existence of evidence from which a jury might infer future dangerousness. And evidence there will surely be in a case such as the present one, correctly described by the Court as "an extraordinarily brutal murder." Ante, at 248.

rections employee, or fireman or former fireman during or because of the performance of his official duties.

"(8) The murder of a family member of an official listed in subitems (5) and (7) above with the intent to impede or retaliate against the official. 'Family member' means a spouse, parent, brother, sister, child, or person to whom the official stands in the place of a parent or a person living in the official's household and related to him by blood or marriage.

"(9) Two or more persons were murdered by the defendant by one act or pursuant to one scheme or course of conduct.

"(10) The murder of a child eleven years of age or under. "(11) The murder of a witness or potential witness committed at any time during the criminal process for the purpose of impeding or deterring prosecution of any crime." S. C. Code Ann. 16-3-20(C) (2001).

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